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2017 DIGILAW 930 (ORI)

Nirmala Nayak v. State of Orissa

2017-08-23

BISWANATH RATH

body2017
JUDGMENT BISWANATH RATH, J. - Filing this writ petition, the petitioner sought for declaring the order at Annexure-3 as illegal, arbitrary and non-est in the eye of law with further direction to the opposite parties for allowing the petitioner to remain Principal In-Charge of the College in question soon after the date of retirement of the Principal In-Charge, namely, Smt. Arunima Das. 2. The petitioner claiming to have requisite qualification was initially appointed as Lecturer in Sanskrit (First Post) on 19.7.82 in the Praja Mandal Mahila Mahavidyalaya in the district of Puri presently situated in the district of Nayagarh. Her service is stated to have been approved, vide approval order dated 30.3.90 following Government Order dated 18.10.85 with effect from her date of joining, i.e. 19.7.82 with further rider making the petitioner eligible to 1/3rd Grant with effect from 1.6.82. It is next contended that the petitioner while continuing as Lecturer in Sanskrit having acquired all necessary qualifications and specific length of service to receive U.G.C. Scale of Pay from the beginning, she was placed in the post of Reader. It is stated by Sri Sahoo that at the time of filing of the writ petition she was working as Reader in Sanskrit in the Sri Satya Sai College for Women’s, Bhubaneswar. One Smt. Arunima Das being the senior most Reader was holding the post of Principal In-Charge of Sri Satya Sai College for Women’s and was to be superannuated by the end of February, 2017. As required the Principal in-charge while intimating the fact of her superannuation, vide letter dated 5.1.2017. recommended the name of next senior most Reader (the petitioner) to be approved as Principal In-Charge of the College indicated herein above. It is alleged that O.P.2 considering the recommendation of the Principal In-Charge without application of mind declared O.P. 4 to be the senior most Reader, vide his letter dated 24.1.2017 and therein directed the O.P.4 to function as Principal In-Charge of the College after retirement of the incumbent on 29.2.2017 as appearing at Annexure-3. 3. It is alleged that O.P.2 considering the recommendation of the Principal In-Charge without application of mind declared O.P. 4 to be the senior most Reader, vide his letter dated 24.1.2017 and therein directed the O.P.4 to function as Principal In-Charge of the College after retirement of the incumbent on 29.2.2017 as appearing at Annexure-3. 3. Being aggrieved by the order under Annexure-3, Sri Sahoo, learned counsel for the petitioner submitted that the petitioner is not only senior in age but also senior in appointment and remained all through senior considering the date of joining of O.P.4 and claimed that the petitioner started her career substantively as against the First Post of Lecturer in Sanskrit in the Praja Mandal Mahila Mahavidyalaya on 19.7.82 whereas O.P.4 started her leave vacancy service on 1.10.82 and discontinued on 16.9.86 further got into a fresh appointment on ad hoc basis against an aided post of Lecturer in Psychology on 20.9.89. It is thus contended that leave vacancy service is not permissible to be credited in favour of O.P.4 as because the entire service benefit has been taken into account and counted in favour of the regular incumbent, S.M. Azfar, Lecturer in Psychology. Taking aid of the provision in the Orissa Aided Educational Institutions (Appointment of Teachers’ Validation) Act, 1989, Sri Sahoo appearing for the petitioner alleged that validation of service of O.P.4 for the period from 1.10.82 to 16.9.86 by virtue of Validation Act, 1989 for the decision rendered by this Court in Vol.76 (1993) CLT 128 becomes void. Under the pretext that the petitioner could not be able to know the validation of service of O.P.4 for her continuing in another college and the petitioner having come to know the above development in favor of O.P.4 only through the order, vide Annexure-3 declaring O.P. 4 as senior to the petitioner, Sri Sahoo, learned counsel for the petitioner contended that the petitioner had no occasion to challenge the validation of service of O.P.4 by virtue of the Validation Act, 1989. Sri Sahoo thus contended that for the validation of service of O.P.4 being void all subsequent benefits favour of the O.P.No. 4 also remain void. Sri Sahoo thus contended that for the validation of service of O.P.4 being void all subsequent benefits favour of the O.P.No. 4 also remain void. Taking aid of the Government Resolution dated 6.10.88, Sri Sahoo, learned counsel for the petitioner submitted that there has already been a prescription on the basis of calculation of seniority and in the said circular, the date of joining of the petitioner for the purpose will be 19.7.82. Hence, it is contended that the competent authority holding the petitioner’s date of joining to be 1.6.83 is not sustainable. It is under the above premises. Sri Sahoo, learned counsel for the petitioner contended that there has been no proper consideration of the case of the petitioner while passing the impugned order under Annexure-3. 4. Sri K.K. Mishra, learned Additional Government Advocate appearing for O.P.2 referring to the stand taken in the counter while opposing the claim of the petitioner contended that for the involvement of challenge of the Validation Act, 1989 in filing the writ petition in the year 2017, the writ petition is grossly barred by time and should be dismissed on this ground alone. Coming to the claim of the petitioner with regard to seniority between the petitioner vis-à-vis O.P.4. Sri Das, learned counsel appearing for O.P.4 contended that the service of O.P.4 has been validated with effect from 1.10.82 by virtue of the Validation Act, 1989. The said Act having been acted upon and having not been challenged by any aggrieved person for almost three decades cannot be available for challenge at present. It is further contended that the petitioner though was appointed on 19.7.82 but her post has been approved with effect from 1.6.83, whereas O.P.4’ post has been approved from 1.10.82. Sri Mishra, learned Additional Government Advocate thus contended that not only the O.P.2 is senior over the petitioner but there has also been a right direction by the competent authority, vide Annexure-3 which needs no interference. So far as the application of the decision involved in Vol. 76 (1993) CLT 128, Sri Mishra submitted that the judgment involving therein being passed on 15.4.93 and the O.P.4’ service being approved, vide Order dated 29.1.90 much prior to the judgment being delivered in the above case, the said judgment has no application to the petitioner’s case. Sri Mishra further contended that the basic principle is the approved date of appointment. Sri Mishra further contended that the basic principle is the approved date of appointment. Under the circumstance, it is contended that there is no illegality or irregularity in the impugned order. Claiming the O.P.4 as senior most in the College, Sri Mishra, learned Additional Government Advocate submitted that there is otherwise no defect in the order at Annexure-3. He thus submitted that there is no merit in the writ petition involving Annexure-3. 5. Sri S.K. Das, learned counsel for O.P.4 filing an independent counter to the counter on behalf of the O.P.4 taking support to the submission made by the learned Additional Government Advocate submitted that the writ petition with multiple prayers is not maintainable in the eye of law. Referring to the provision contained in Section 10-C of the Orissa Education Act, 1969, Sri Das, learned counsel for the O.P.4 submitted that the above provision enables the State Government to constitute a common cadre as per the Rules for all or any class of employees of an aided educational institution. Cadre has been defined in Rule 11 of the Service Code, which means strength of the service or part of the service sanctioned as separate unit. Government in its Resolution dated 19.3.90 prescribed guidelines to regulate the recruitment of teachers in the non-Government Colleges. Paragraph-8 of the Resolution prescribes that the Principal of non-Government Aided College may be appointed from amongst the Readers/Lecturers (Selection Grade). Lecturers’ grade has been further deleted in the Resolution dated 22.1.1994. Therefore, the principle only prescribes that the Principals of the non-Government Colleges are to be filled up from amongst the Readers following the Government Instruction dated 14.5.87. The post of Principal has to be filled up from the Readers on the basis their seniority taking into consideration the performance. Sri Das further contended that Government has brought the Orissa Education (Senior Administrative Grade) Recruitment Rule, 1990 fixing guidelines for recruitment to the post of Principal (Reader Grade) of the Government Colleges and Rule 2(1)(b) therein provides the post of Principal shall be filled up by selection from amongst the Readers of Government Colleges. The same principle is also extended in the case of filling up the post in the non-Government Aided Colleges. The same principle is also extended in the case of filling up the post in the non-Government Aided Colleges. Sri Das thus contended that there remains no doubt that the Principals in non-Government Colleges are to be appointed on the basis of seniority from amongst the Readers stating that O.P.4 became a Reader with effect from 10.10.2000 and the petitioner became Reader only with effect from 1.6.2001. Following the Gradation List of Readers published on 1.4.2015 disclosing O.P.4 finds place at serial no. 404 whereas the petitioner’s name finds place at serial No. 683, Sri Das thus contended that there is no doubt that the O.P.4 is not only senior from the initial appointment but also senior in the cadre of Reader as against the petitioner. Referring to the judgment of this Court in Lalit Mohan Kanungo vrs. Cuttack Christian Educational Board & others (O.J.C. No. 4862 of 1995), Sri Das submitted that the decision taken therein has a direct bearing supporting the case of O.P.4 and thus submitted that there is no scope for this Court for interfering with the impugned order. Further regarding the writ petition being filed after twenty-seven years of the Validation Act, 1989 and relying on a decision of the Hon’ble apex Court in P.S.Sadasivaswamy vrs. State of Tamil Nadu reported in AIR 1974 SC 2271 , Sri Das, learned counsel for O.P.4 submitted that the writ petition is otherwise also bad for grossly barred by time. 6. Considering the rival contentions of the parties and the developments taken right from the initial appointment of the petitioner and O.P.4 and further taking cue from the counter filed by O.P. 4, this Court finds, there remains no doubt that following the Validation Act, 1989, the initial date of joining of O.P.4 has been taken as 1.10.82, whereas the initial date of joining of the petitioner appears to be 1.6.83. There is no denial to the fact that there is no challenge to the declaration of dither the Validation Act, 1989 or the Validation of service of O.P.4 for the period from 1.10.82 to 16.9.86, which has been taken place in the year 1989 and 1990 respectively. This Court finds, challenge to the above development in filing a writ petition in the year 2017, the writ petition is grossly bared by time. This Court finds, challenge to the above development in filing a writ petition in the year 2017, the writ petition is grossly bared by time. The petitioner is not permitted to challenge the developments taken place in 1989 and 1990 respectively after almost three decades. Entertaining such a prayer at this stage will amount to unsettle the settled position involving not only the O.P. 4 but also several others, who have got the benefit by virtue of the Validation Act, 1989 in the meanwhile. The petitioner’s claim that the petitioner not being aware of the development through the Validation Act, 1989 and as such, she was unable to file a writ petition at appropriate state, looking to the factual scenario and the petitioner being a Lecturer in an educational institution, such plea of the petitioner cannot be accepted on any consideration. Looking to the citation cited by the petitioner involving Vol. 76 (1993) CLT 128 (Biswanath Pati vrs. State of Orissa & others), this judgment being passed in the year 1993 and the development indicated herein above having taken place in the year 1990 based on the Validation Act of the year 1989, the decision has no retrospective effect. Therefore, the plea of the petitioner on the basis of the decision in Biswanath Pati (supra) is thus overruled. 7. Now coming back to the appointment in the post of Principal In-charge involving the case of the petitioner and the O.P.4, this Court though not finding any provision in the appointment of Principal In-Charge in the Orissa Education Act or the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 but finds the provision for appointment of Principal at Rule 8(3) of the Rules, 1974, which reads as follows:- “8. Exceptions to Selection by the Board- Xxx xxx xxx (3) Vacancies in the posts of Headmasters of aided Boy’s High Schools and Headmistresses of Girls’ High Schools and Readers, including Principals of aided Colleges under the fold of the system of ‘direct payment of full-salary-cost’ shall be filled up by the eligible trained graduate teachers of respective categories of High Schools and Headmasters and Headmistresses of respective categories of Middle English Schools, and by the lecturers belonging to the common cadre of the Aided Colleges, as the case may be, from the select list prepared by the Selection Board in the Manner prescribed in the Regulation framed by the Selection Board for the purpose, on the basis of the recommendation of a Committee to be constituted by the Government which shall be headed by the Director. The selection shall be made on the basis of seniority in the common feeding cadre and performance. The zone of consideration shall be thrice the number of vacancies: Provided that ad hoc promotions to the posts of Readers which includes Principals of aided College. Headmasters of aided Boy’s High Schools and Headmistresses of aided Girls’ High Schools ;under the fold of the system of ‘direct payment-of-full-salary-cost’ may however, be made from the concerned common feeding cadre for a period of one year or till the date of receipt of select list from the Selection Board, whichever is earlier, with the prior approval of Government: Provided further that in the absence of common feeling cadres, appointment of the posts of Headmasters of aided Boys’ High Schools and Headmistresses of aided Girls’ High Schools of the State under the fold of the system of direct-payment-of –full-salary cost can be made by the authority form amongst the eligible trained graduate teachers of the respective categories of aided High School and aided Middle English schools, as the case maybe, on the recommendation of the Selection Board through an open advertisement. The Selection shall be on the basis of the length of service and performance as trained graduate teachers in aided High Schools or Headmasters and Headmistresses in aided Middle English Schools.” Reading of the aforesaid provision makes it clear that the post of Principal of the Aided College shall be filled up by the Lecturers belonging to the common cadre of the Aided Colleges as the case may be from the select list prepared by the Selection Board on the basis of recommendation of a Committee to be constituted by the Government, which shall be headed by the Director. It further clarifies that the selection shall be made on the basis of seniority in the common feeding cadre and performance. The first proviso to Rule 8(3) of the Rules further deals with ad hoc promotions to the post of Readers, which includes Principal of Aided Colleges also taking into consideration from the concerned common feeding cadre for a period of one year or till the date of receipt of select list. 8. Taking into consideration the aforesaid provision, this Court finds, there remains no doubt that the appointment of the Principal In-Charge will also be made looking to the seniority in the feeder cadre. The feeder cadre being the post of Reader, from the pleadings of both the parties and the submissions, this Court finds, the O.P. 4 joined the post or Reader with effect from 1.10.2000 whereas the petitioner became a Reader with effect from 1.6.2001 and the names of the O.P.4 and the petitioner being found at serial nos. 404 and 683 respectively as clearly borne from Annexure-D/4, this Court thus finds the O.P.4 is senior to the petitioner in the feeder cadre, i.e, cadre of Reader, consequently, this Court finds no infirmity in the impugned order, vide Annexure-3. 404 and 683 respectively as clearly borne from Annexure-D/4, this Court thus finds the O.P.4 is senior to the petitioner in the feeder cadre, i.e, cadre of Reader, consequently, this Court finds no infirmity in the impugned order, vide Annexure-3. While parting away from the judgment, this Court taking into consideration the provision contained in Rule 8(3) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 and considering that the writ petition involved appointment of Principal In-Charge and the provision having been provided to continue the Principal In-Charge for a period of one year or till the date of receipt of select list from the Selection Board and finding that there has been appointment of Principal In-Charge by the impugned order on 24.1.2017, this Court directs the Selection Board to take steps for appointment of the Principals in the un-Aided Educational Institutions for there being no position of a Principal In-Charge under the statute and complete such exercise as early as possible preferably within a period of three months from the date communication of this judgment. The writ petition stands disposed of without interfering with the impugned order but with the aforesaid observation/direction No cost. Petition disposed of.